Unelected bureaucrats hold tremendous power over us, thanks to decades of Congress delegating ever more authority, with minimal constraints, to executive branch agencies.
However, Congress has imposed some checks on federal bureaucrats to ensure a modicum of democratic accountability over the regulatory state. One of those checks is the Congressional Review Act, which requires agencies to submit every rule they wish to impose on us for review by our elected representatives in Congress.
The CRA experienced a renaissance in 2017, with Congress disapproving of 16 burdensome and controversial rules. However, as PLF has long pointed out, many more rules must still undergo this scrutiny, thanks to decades of agencies simply ignoring the CRA’s requirements. There are literally thousands of rules being enforced today that have never received even this minimal level of democratic scrutiny.
Thanks to a decision last night from the District Court for the District of Idaho, that may be about to change.
Representing ranchers unlawfully subject to controversial rules regarding the greater sage grouse, PLF sued the departments of the interior and agriculture, demanding that they finally send these rules to Congress as required. Illustrating how adamantly opposed agencies are to democratic oversight, the government sought to have the case dismissed, arguing that agency violations of the CRA — no matter how clear cut — cannot be reviewed by any court.
In this case, the court recognized that argument for what it is — a claim that agencies are free to behave lawlessly — and squarely rejected it.
“[W]ithout review,” the court explained, “an agency would frankly have no reason to comply with the CRA.” The court continued, “[I]f the agency never submits its plans — as required — the Court is troubled with Defendants’ position that essentially any rule or law can go into effect without oversight or approval and there is no legal remedy available[.]”
The decision was based primarily on the text of the law and clear statements from Congress about its meaning. But the court also emphasized the policy ramifications of the government’s argument:
Reading judicial review out of the CRA foils its primary purpose. Congress enacted the APA and CRA to act as a check and balance on agency action. Reading the statute in such a way as to foreclose that option — even more specifically: to foreclose that option just for the agencies — arbitrarily gives said agencies more power than originally intended.
This decision is far more momentous than your typical decision on a motion to dismiss. Once judicial review is established, CRA claims are clear cut:
In this case, the answer to both questions is clearly “no.” Therefore, the court’s holding that judicial review is available means these controversial rules must be submitted to Congress.
It’s also a shot across the bow to agencies that have consistently refused to comply with the CRA. Unless they send their rules to Congress as required, they should be prepared for courts to hold that they can review these clear violations and can compel compliance.
In the fight for democratic accountability over the regulatory state, this is an important precedent — and a welcome development for those of us who have been fighting for years to require greater oversight and accountability from government agencies.